Lindh's lawyer wants lighter sentence / 20 years in prison unfair if other U.S. citizen in Taliban goes free, he argues

Edward Epstein, Chronicle Washington Bureau

Published 4:00 am, Saturday, August 14, 2004

2004-08-14 04:00:00 PDT Washington -- Attorneys for imprisoned John Walker Lindh, citing reports that another U.S. citizen caught with the Taliban in Afghanistan might be released soon, appealed to federal authorities Friday to reconsider the Marin man's 20- year prison term.

The plea by San Francisco-based lawyer James Brosnahan is based on the discrepancy between the sentence Lindh received after pleading guilty in July 2002 to charges of aiding the Taliban and carrying weapons for them, and the prospect that the federal government may set free Yaser Esam Hamdi.

In a filing this week in federal court in Norfolk, Va., the Justice Department disclosed that it was negotiating to release Hamdi, a Louisiana- born man who grew up in Saudi Arabia and was captured on an Afghan battlefield in November 2001. Classified as an "enemy combatant," he was transferred with hundreds of other prisoners to the U.S. Navy base at Guantanamo Bay, Cuba; only then was his U.S. citizenship verified.

Hamdi has been one of the prisoners at the center of a heated legal battle over the rights of detainees. In June, the Supreme Court ruled against the Bush administration, saying that Hamdi, who had initially been denied the right to attorneys, could challenge his detention. No criminal charges have been filed against Hamdi, whose possible deal reportedly calls for him to renounce his U.S. citizenship, return to Saudi Arabia and never take up arms against the United States.

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"The similarities are there," Brosnahan said Friday of the two cases. "It seems appropriate for the Department of Justice to reconsider this."

The Justice Department did not return calls for comment on Brosnahan's request.

Lindh was captured during a prison riot in northern Afghanistan in November 2001. After he was returned to the United States, Brosnahan and his associates took over his case as he was arraigned in Arlington, Va.

Brosnahan, who said he has not been in direct contact with the Justice Department about the matter, wouldn't say what options he wanted the government to pursue.

But legal experts said there would be only two courses available if authorities decided to take a new look at Lindh's case. One would be a presidential pardon and the other a joint request by the two sides for a judge to reopen the case based on new information or circumstances.

Brosnahan cited a comment in Thursday's Washington Post by an unidentified Justice Department official, who said of the Hamdi case, "It's been three years, and it's a different time. So it is appropriate to look at the options."

"We agree," said Brosnahan, a former federal prosecutor. He said he or his associates visit Lindh, who was 21 when he was sentenced, every few months at the federal prison in Victorville (San Bernardino County). With credit for good behavior and for his cooperation with federal authorities, Lindh faces another 15 years in prison.

Brosnahan said the disparate treatment of the two U.S. citizens "would only trouble someone who's into fairness. Even professional prosecutors with the hardest of hearts realize the law should try to achieve some parity, some equity."

But legal experts, who said Brosnahan was right to raise the issue on his client's behalf, said the situation was far more nuanced.

One irony could be that Lindh might be a victim of his constitutional rights to face charges in open court with legal representation. He was immediately recognized as an American when he was captured in the aftermath of the bloody Taliban uprising at the Qala-i-Jangi prison and, eventually, gained a lawyer.

"There doesn't seem to be a lot of difference between what Lindh and Hamdi did," said Scott Silliman, a professor of military law at Duke University. "But the circumstances of their apprehension were different, and the administration knew immediately that Lindh was entitled to his constitutional rights."

Lindh came up for trial while the nation's anger over the Sept. 11, 2001, terrorist attacks was still fresh and the Bush administration was figuring out how to handle such cases.

"My suspicion has always been that in the fall of 2001, there was not a good plan established," Silliman said. "The administration was surprised that an American like Lindh would pop out of that armed conflict in Afghanistan."

Douglas Kmiec, a former Justice Department official who is a professor of constitutional law at Pepperdine University in Malibu, said Lindh "got the civil libertarian treatment ... and got the benefit of the Bill of Rights."

"Hamdi looks like he will get the more favorable outcome either because of his less serious involvement or because he was never put into the adversarial process" in court, Kmiec said.

Eugene Fidell, a Washington lawyer who represents clients in military cases, said that after the legal issues surrounding the detention of hundreds of "enemy combatants" at Guantanamo were finally settled, Lindh might get relief.

"One would think that when the dust settles, someone will be taking a look ... to see if an adjustment should be made," he said.

But because any evidence against Hamdi has never been spelled out, "it's quite difficult to get a handle on whether there is a tension between these two outcomes," he added.